Why It's Vital for States to Sue Over Climate Change

By taking fossil-fuel companies to court, states stand the best chance to hold them to account.
October 30, 2018
U.S. Coast Guard rescue swimmers approach a Pollocksville, N.C., resident stranded on his van in the aftermath of Hurricane Florence. (AP/Steve Helber)
By Nathaniel Eisen  |  Contributor
A joint J.D./master in public policy student at NYU and the Harvard Kennedy School

Climate change is creating a new world of megastorms and heat waves, with Hurricanes Florence and Michael just the latest tragic examples. A recent report from the United Nations' Intergovernmental Panel on Climate Change forecasts severe coastal flooding at temperature increases below those aimed for in the Paris Agreement. Who will pay for the damage that climate change is already causing to our streets, sewers and public land? Who will pay for the costs of adapting to this new world?

On the one hand, all of us will pay. But the fossil-fuel companies that lied to the public about the dangers of using their products, and bought years of political inaction with those lies, bear a special responsibility. More than a dozen lawsuits across the country, most of them brought by local governments, aim to hold these companies to account. (Last summer, I worked on one such suit as a legal intern at EarthRights International, which is representing cities and counties in Colorado.)

Two other local-government lawsuits, one of them brought by New York City and the other by San Francisco and neighboring Oakland, were recently dismissed. Yet in responding to those suits, fossil-fuel companies admitted that burning their products leads to climate change.

With the exception of Rhode Island, states have hung back from legal efforts targeting fossil-fuel companies. Yet states arguably stand a better chance of prevailing on the merits than local governments because they can rely on what's known as the "public trust doctrine," which holds that, as the original sovereigns that joined to form the nation, the states have the duty to protect natural resources that should belong to all of us such as the shoreline, rivers and the water table. States should band together to sue fossil-fuel companies as they once took on a tobacco industry that used the same playbook of deception.

Doing so is vital if states are going to have any chance of protecting their citizens and their infrastructure. States must decide whether to pay for adapting to the consequences of climate change now or face costly and tragic consequences later. Yet the costs of adapting are prohibitive -- most states simply don't have the resources -- and there are political constraints as well. A recent attempt to aggregate state budget data determined that most states direct less than 1 percent of their budgets to climate-change mitigation and adaptation combined.

This is not, however, simply about going after those with the deepest pockets. Fossil-fuel companies like ExxonMobil misled the public. They shut down their own research into the causes and effects of climate change, then funded shady front groups to sow doubt about the scientific consensus. Only litigation can reveal the full extent of their wrongdoing.

All of the cases brought so far rely on the tort of "nuisance." This legal action is best understood through Boomer v. Atlantic Cement Co., the New York case decided in 1970 from which modern American nuisance law derives. Vibrations and dust from a large cement plant near Albany were damaging nearby homes. Because the plant interfered with neighbors' ordinary uses of their property, the judge ordered compensation proportional to the interference, even while allowing the plant to continue to operate.

Expanding this framework to climate change requires judges to think in terms of probability and contribution. The harms from burning fossil fuels occur by making natural phenomena more intense and frequent, and many actors contribute. However, the same is arguably true of tobacco, which merely increases the likelihood of developing cancer. And advances in scientific methods make it possible to determine how much climate change is intensifying natural disasters.

Lawsuits don't conflict in any way with federal and state policies to limit greenhouse gas emissions. They simply attempt to place responsibility for funding life-preserving adaptations where it belongs.

Many questions, such as how to limit emissions and what adaptations to prioritize, would remain even after a successful nuisance or public-trust lawsuit. Yet to get to that point -- to begin to fairly allocate the costs of adaptation to those who bear the responsibility for climate change -- litigation is vital. So states, please, take the fossil-fuel companies to court.